The Commission is proposing an overall harmonisation of provisions for consumer protection in consumer contracts, in order to encourage competitive offers in the internal market whilst ensuring a high level of consumer protection.

ACT

Proposal for a Directive of the European Parliament and of the Council of 8 October 2008 on consumer rights.

SUMMARY

This proposal aims at harmonising provisions concerning consumer protection, on contracts for the sale of goods and the provision of services concluded between consumers * and traders * . Overall harmonisation of these provisions should allow the functioning of the internal market to be improved and a high level of consumer protection to be ensured.

Information obligation and right of withdrawal

The trader shall provide the consumer with certain information during the pre-contractual phase. This information will then form an integral part of the contract. In particular:

the main characteristics of the product;

the geographical address and identity of the trader or their trading address;

the price inclusive of all taxes and charges relating to transport, delivery and postage. The consumer will not be responsible for charges that are not pointed out by the trader;

arrangements for payment, delivery and performance;

the existence of after-sales services and commercial guarantees;

the existence of a right of withdrawal;

the duration of the contract or the conditions for termination if the contract is open-ended;

the minimum duration of the consumer’s obligations under the contract;

the existence of an obligation for the consumer to pay a deposit or to provide financial guarantees.

Contracts concluded by intermediaries * acting on behalf of consumers/vendors (for example a shop selling second-hand goods) are not covered by the Directive, they are considered as having been concluded between two consumers, with the exception of those for which the intermediaries fail to indicate that they are acting on behalf of a consumer/vendor.

For distance selling contracts * such as contracts concluded by Internet and off-premises contracts * such as contracts concluded at the consumer’s home, specific procedures for the sending of pre-contractual information have been established. In addition, for these two types of contract, consumers shall have a right of withdrawal of fourteen days when they do not have to provide a reason.

Traders’ obligations in contracts for the sale of goods

Traders shall deliver the goods within a period of thirty days from the date the contract was concluded. Where the trader has failed to fulfil his obligations, the consumer shall be entitled to a refund of any sums paid within seven days from the planned date of delivery.

Responsibility for risk of loss or damage of the goods is transferred from the trader to the consumer, or to a designated third person other than the carrier, upon material possession or delivery of the goods.

The trader shall deliver the goods in conformity with the contract. They must therefore correspond to the description given by the trader, to the special use required by the consumer if this condition is covered by an agreement, to the normal use of these goods and to the usual quality and performance of goods of the same type. If there is a significant lack of conformity of the goods, the consumer shall be entitled firstly to a repair or replacement of the goods, and secondly to a reduction in the price or the termination of the contract. The trader is liable for this guarantee of conformity of the goods for a period of two years from the transfer of risk to the consumer.

Contract terms

The proposal for the Directive sets out specific provisions for consumer protection with regard to pre-established contract terms that the consumer has not had an opportunity to negotiate (for example, standard terms in General Conditions of Sale).

Consumers must be able to consult the terms before concluding the contract, and to express their express consent for any additional charges (for example, boxes concerning additional options that have been pre-ticked by the trader are prohibited).

Annex II sets out a list of unfair contract terms that are prohibited in all circumstances and Annex III sets out a list of terms that are considered to be unfair according to their purpose or their effect. If there is doubt as to the meaning of terms, the interpretation that is most favourable to the consumer shall prevail.

Penalties

If these obligations are infringed, Member States shall lay down rules on penalties that conform to their judicial systems. Public bodies, consumers’ organisations and professional organisations having a legitimate interest shall have a right of recourse to courts and administrative authorities with jurisdiction.

Context

This proposal is a result of the revision of the Community Acquis on consumer protection, launched in 2004 with the aim of simplifying legislation and creating the conditions for a more efficient internal market for consumers.

Trader: any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader.

Consumer: any natural person who, in contracts covered by this Directive is acting for purposes which are outside his trade, business, craft or profession.

Intermediary: a trader who concludes the contact in the name of or on behalf of the consumer.

Distance contract: any sales or service contract where the trader makes exclusive use of one or more means of distance communication. That is any means which may be used without the simultaneous physical presence of the trader and the consumer.

Off-premises contract:

any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances; or

any sales or service contract concluded on business premises but negotiated away from business premises, with the simultaneous physical presence of the trader and the consumer.